CEDAW Committee declares domestic violence and child custody communication inadmissible (T.N. v. Denmark)

T.N., a U.S. citizen, married a Danish national and had two children with him. She claimed he subjected her to domestic violence while they were in Germany and told her she would not be allowed to see their children if she did not return to Denmark with him. She went to Denmark, where she claimed the violence continued. T.N. said she reported the violence to Danish police on several occasions, but that they failed to take appropriate action to protect her and her children. She alleged the violence continued to worsen and that her husband threatened that she would not see their children again, if she left him.

In 2010, T.N. took her children and went to a shelter, where they lived for a few months. The police confiscated their passports, at the request of her husband. She claimed that the same officers refused to make a report on the domestic violence or note her injuries. She was unable to file a domestic violence complaint at the police station because the officer did not speak good English. T.N. claimed there was no further follow-up by the police.

In 2010, T.N. filed for divorce. The Regional State Administration of Mid-Jutland decided the children were to reside with T.N. until a court decision or an agreement on residence was reached. In custody proceedings before the Aarhus District Court, T.N. claimed her husband was violent towards her and their children when they lived together and continued to beat the children when he spent time with him under the joint custody arrangement.

In 2011, the Court ruled in favour of T.N.’s husband and granted him full custody. It based its decision on the absence of proof of any domestic violence and the Court’s assessment that the father would provide the children a better environment in which to live because he would not prevent them from seeing T.N. In 2012, the High Court of Western Denmark upheld the decision.

In September 2011, T.N. submitted a communication to the Committee on the Elimination of Discrimination against Women, in which she claimed that she and her daughters were victims of violations by Denmark of articles 1, 2, 5 and 16 of the Convention on the Elimination of All Forms of Discrimination against Women. Specifically, she claimed that: she and her daughters were victims of discrimination on the grounds of sex, nationality and race; and the State Party had failed to protect her and her children against domestic violence, by not pursuing her abusive husband through the criminal justice system and not granting her custody of their children. She further claimed that the State Party’s police and judicial authorities are biased against female foreigners married to Danish men, evidenced in their giving credence to her husband’s version of events and disregarding her own.

In July 2012, the Committee granted T.N.’s request for interim measures under article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Among other things, it asked the State Party to take all measures necessary to ensure: the violence was taken into account and the rights and safety of T.N. and her children were not jeopardised, in the determination of child custody and visitation rights.

State Party’s observations on admissibility

Initially, the State Party contended that the Committee should reject the communication at the registration stage and not ask it to submit observations on the unstructured and voluminous documents submitted by T.N., which it claimed did not rely on any rights in CEDAW or specify the scope of the complaint. The State Party suggested that the communication relates mainly to ongoing litigation between T.N. and her husband.

The State Party went on to challenge the admissibility of the communication on several grounds. It contended that:

  • T.N. had made unsupported claims not raised in substance before the Danish authorities and which they therefore had not had the opportunity to address. It therefore submitted that the communication should be declared inadmissible under article 4(1) of the Protocol, for failure to exhaust domestic remedies
  • it was unclear which rights, if any, under CEDAW T.N. was relying on and that the communication was therefore incompatible with CEDAW and should be declared inadmissible under article 4(2)(b) of the Protocol. It noted that T.N. had alleged violations of a number of other international instruments
  • T.N. had failed to sufficiently substantiate her claim, in accordance with article 4(2)(c), as she had put forward unclear and generally unsupported claims and not identified or explained which CEDAW rights she was relying on or identified which state acts or omissions constituted a violation of CEDAW
  • for the reasons above, the communication should be declared inadmissible under article 4(2)(d) as an abuse of the right to submit a communication.

CEDAW Committee’s decision on admissibility

The Committee determined that T.N. had failed to substantiate her claims under articles 1, 2, 5 and 16 of CEDAW and declared the communication inadmissible under article 4(2)(c) of the Protocol.

Failure to sufficiently substantiate claim

The CEDAW Committee concluded that T.N. had not sufficiently substantiated her claim that the State Party had failed to investigate her allegations of domestic violence, for the purposes of admissibility. It explained that T.N. had submitted many unstructured documents, many without full translation, and that many of her arguments were not comprehensive, lacked consistency and were unsupported by documentation. By contrast, it explained, the State Party had provided detailed information about the police investigations it had conducted.  The Committee noted T.N.’s claim that she was a victim of gender-based discrimination during the custody proceedings, but concluded that she had also failed to substantiate that claim, for the purposes of admissibility.

Although the Committee determined that the communication had not been sufficiently substantiated, it also commented on several other grounds of inadmissibility.

No failure to exhaust domestic remedies

The CEDAW Committee concluded that although T.N. submitted her individual communication while custody proceedings were still pending in Denmark, it was not precluded from considering the communication under article 4(1) of the Optional Protocol, as the High Court of Western Denmark had since rendered a final decision. It further noted that T.N. had raised violations of article 2 of CEDAW at the domestic level and that authorities had an opportunity to consider the alleged violations.

The same matter had not been examined previously

The Committee condemned T.N. for submitting a complaint to the European Court of Human Rights while her communication was pending before it. However, it ultimately determined that the same matter had not been examined under another procedure of international investigation or settlement, in accordance with article 4(2)(a) of the Optional Protocol. According to the Committee, the Court’s decision, which declared T.N.’s complaint inadmissible, was limited to procedural grounds relating to admissibility and did not provide sufficient reasoning to allow it to consider that the Court had examined the case in the manner required by article 4(2)(a) of the Protocol.

Communication was compatible with CEDAW

The Committee concluded that since T.N. had alleged violations of CEDAW (in addition to referring to rights under other international instruments), her communication was compatible with the treaty in respect of those alleged violations, pursuant to article 4(2)(b) of the Optional Protocol.

Communication No. 37/2012, UN Doc. CEDAW/C/59/D/37/2012 (2014)

Decision

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CEDAW Committee finds violations of CEDAW concerning domestic violence, child visitation rights and child support (Angela González Carreño v. Spain)

In 1999, Angela González Carreño left her husband, F.R.C., because he had subjected her to domestic violence over several years. She reported the violence to the authorities. A trial separation was ordered between Angela and F.R.C. Angela was given custody and guardianship of Andrea, their daughter, and F.R.C was ordered to pay child support. A limited regime of supervised visits between F.R.C. and Andrea was ordered.

The violence against Angela continued, some of which Andrea witnessed, and included repeated death threats. During his visits with Andrea, F.R.C. questioned Andrea about her Angela’s private life, spoke ill of Angela and made accusations about her. As a result, Andrea became afraid of her father and did not want to spend time with him outside the visitation regime. He then accused Angela of manipulating Andrea. Despite many complaints, F.R.C. was only convicted once on a charge of harassment and then fined only 45 euros.

Angela repeatedly sought protective orders before local courts to keep F.R.C. away from her and Andrea, a regime of supervised visits and child support payments. The courts issued protective orders for Angela, but F.R.C. violated them without legal consequence to him. Only one order included Andrea, but the court left this order unenforced following an appeal by F.R.C., since it considered the order hampered the visit regime and could harm relations between F.R.C and Andrea.

In January 2001, the Court of First Instance No. 1 of Navalcarnero drew up a provisional schedule of supervised visits monitored by social services. In September 2001, a psychological evaluation report proposed that visits between F.R.C. and Andrea should be normalised gradually.

In November 2001, the court entered the order of marital separation. The order did not take the domestic violence into account or identify it as the cause of the separation. The order maintained the supervised visit regime for one month, gradually expanding it in line with F.R.C.’s behaviour. It did not address F.R.C.’s continued non-payment of child support.

In May 2002, Court No. 1 of Navalcarnero authorised unsupervised visits between F.R.C. and Andrea, despite many violent incidents by F.R.C. during the period of supervised visits. Angela appealed the decision without success.

In April 2003, F.R.C. murdered Andrea and committed suicide. In June 2003, Investigative Court No. 3 of Navalcarnero declared F.R.C.’s criminal liability for Andrea’s death extinguished on account of his suicide.

In April 2004, Angela filed with the Ministry of Justice a claim for compensation for miscarriage of justice. Angela claimed that the authorities were negligent and failed in their obligation to protect the life of Andrea, despite being repeatedly informed of the danger she faced. The Ministry denied the claim, concluding that the authorities acted properly regarding the visitation regime. It noted that Angela could pursue her claim for compensation only if the Supreme Court found judicial error. An appeal, filed by Angela, was denied. In June 2007, Angela lodged an administrative appeal before the High Court, alleging improper functioning of the administration of justice. This and subsequent appeals, including to the Constitutional Court, were also denied.

Angela’s subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed to be a victim of a violation by Spain of articles 2(a)-2(f), 5(a) and 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Among other things, she asserted that:

  • the authorities failed to act with due diligence to prevent, investigate, prosecute and punish the known violence experienced by Angela and Andrea and the murder of Andrea
  • the authorities failed to provide an effective judicial response to Andrea’s murder and appropriate redress for the damages Angela suffered through the State Party’s negligence
  • the State Party had inadequate protections against domestic violence at the relevant time and that victims continued to experience discrimination
  • stereotyping by the authorities meant that, inter alia, they: did not investigate Andrea’s situation as a direct and indirect victim of violence; prioritised F.R.C.’s wishes over Andrea’s rights and best interests; and questioned Angela’s creditability
  • the authorities discriminated against Angela in the decisions on her separation and divorce, including by not taking the violence into account and ensuring F.R.C. paid child support.

State Party’s observations on admissibility

The State Party contested the admissibility of the communication on several grounds. First, it claimed that the Committee should declare the communication inadmissible because Angela had failed to exhaust domestic remedies, specifically by alleging judicial error before the Supreme Court. Second, it claimed that Angela’s complaint was not sufficiently substantiated. Specifically, it asserted that F.R.C., and not Spanish authorities, committed the acts of which Angela complained and, further, that its authorities did not act negligently. Third, it claimed that the Committee was unable to consider a communication concerning events that occurred prior to the entry into force of the Optional Protocol for the State Party and which were not continuing.

Committee’s decision on admissibility

The CEDAW Committee declared the communication admissible under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol or Protocol).

Ratione temporis

In declaring the communication admissible ratione temporis, the Committee acknowledged that some of the abuses and complaints occurred prior to the Protocol’s entry into force for the State Party. However, it determined that key facts and decisions leading up to the murder of Andrea, including judicial decisions authorising the regime of unsupervised visits and refusing Angela’s appeal, occurred after the relevant entry into force date. It explained that it would take the prior abuses and complaints into account only insofar as they explained the context of events occurring after the Protocol’s entry into force for Spain.

Exhaustion of domestic remedies

The Committee determined that Angela had exerted reasonable efforts to exhaust domestic remedies. In this connection, it noted that Angela had filed several appeals, including before the Constitutional Court, all of which were rejected by national authorities. The Committee also noted the State Party’s failure to identify other remedies that it believed could respond effectively to Angela’s complaint about the establishment of unsupervised visits between F.R.C and Andrea and the lack of redress for Andrea’s death.

Sufficiently substantiated

In the Committee’s expert view, Angela had sufficiently substantiated her complaints, for the purposes of admissibility.

State Party’s observations on merits

The State Party asserted that it had not violated CEDAW. Among other things, it claimed that: F.R.C.’s behaviour was unforeseeable and nothing could lead it to predict a danger to the life or physical or mental health of Andrea; its authorities had not acted negligently; and the acts of which Angela complained were committed by F.R.C. It further claimed that Angela had wrongly asserted that Spain had no protections against gender-based violence at the time and provided the Committee with a list of actions undertaken to eradicate discrimination against women.

Committee’s decision on the merits

The CEDAW Committee determined that the State Party had violated articles 2(a)-2(f), 5(a) and 16(1)(d) of CEDAW, read with article 1 and its General Recommendation No. 19.

Gender-based violence against women

In reaching its determination, the Committee recalled its General Recommendation No. 19, in which it defined gender-based violence as a form of discrimination, within the meaning of article 1 of CEDAW. It also reiterated that States Parties have a due diligence obligation to take all appropriate measures to prevent, investigate, punish and provide reparations for gender-based violence perpetrated by non-state actors. According to the Committee, public officials must respect the due diligence obligation, if women are to enjoy substantive equality and protections against violence in practice. This obligation, the Committee explained, includes investigating the existence of failures, negligence or omissions on the part of public authorities that may have deprived victims of protection against such violence.

Turning to the facts, the Committee concluded that the violence committed by F.R.C. against Angela and the murder of Andrea was foreseeable. It noted, for instance, that F.R.C.: committed numerous acts of violence against Angela, which Andrea often witnessed; was not held legally liable for ignoring court protective orders; and had been diagnosed with an “obsessive-compulsive disorder with aspects of pathological jealousy and a tendency to distort reality which could degenerate into a disorder similar to paranoia”. It also noted a social services report regarding the need for continuous monitoring of visits between F.R.C. and Andrea. According to the Committee, the State Party’s due diligence obligations were not meet, since no reasonable steps were taken to protect Angela and Andrea against the violence and, in Andrea’s case, murder. Moreover, the State Party had not investigated whether its authorities failed to protect, or were negligent in protecting, Angela and Andrea against violence.

Unsupervised visits

In reaching its determination, the Committee affirmed that child custody and visitation decisions should be based on the best interests of the child, not on stereotypes, with domestic violence being a relevant consideration. In addition, it stressed that stereotypes affect women’s right to an impartial judicial process and the judiciary must not apply inflexible standards based on preconceived notions about what constitutes domestic violence.

Turning to the facts, the Committee concluded that the decision to grant F.R.C. unsupervised visits with Andrea: was based on stereotypes about domestic violence that prioritised his (male) interests and minimised his abusive behaviour, over the safety of Andrea and Angela; did not take into account the long-term pattern of domestic violence; and did not specify necessary safeguards.

Lack of reparation

The Committee determined that Angela’s efforts to obtain redress for the serious and irreparable harm she had suffered had been futile, resulting in further violations of her rights under CEDAW.

Recommendations 

The Committee recommended that the State Party provide Angela reparations and investigate whether failures in its structures and practices led to Angela and Andrea being denied appropriate protection. Other recommendations included: ensuring domestic violence is taken into account in custody and visitation matters and that the best interests of the child prevail in related decisions; ensuring that its authorities exercise due diligence and respond appropriately to domestic violence; and providing mandatory training for judges and administrative personnel on the legal framework concerning domestic violence and gender stereotyping.

Communication No. 47/20 12, UN Doc. CEDAW/C/58/D/47/2012 (2014)

Decision

Child custody communication inadmissible (M.K.D.A.-A. v. Denmark)

In 2005, K.D.A.-A. (a Filipino national) married M.A. (a Danish national).  M.A. began to abuse K.D.A.-A. shortly thereafter.  The couple left Denmark together in 2007 and lived in various countries, including the Philippines, where their son was born.  M.A. returned to Denmark in 2011 and applied for a 28-day family reunification visa for K.D.A.-A. 

K.D.A.-A. informed M.A. that she was reluctant to return to Denmark.  However, she returned to Denmark in May 2011, using the family reunification visa, for a two-week holiday with her son.  M.A. subsequently informed K.D.A.-A. that their son would not be returning to the Philippines with her and he also refused to allow K.D.A.-A. to see their son.  K.D.A.-A. contacted local police, but she was not provided any assistance because the couple had joint custody of their son. 

K.D.A.-A. filed a complaint, and applied for sole custody of her son, with the Regional State Administration.  The Regional State Administration ruled in June 2011 that it did not have jurisdiction over the matter “because the child was resident in the Philippines”.  It did, however, confirm that the child was on holiday in Denmark, even though K.D.A.-A. had entered Denmark using the reunification visa.  M.A. appealed unsuccessfully in July 2011 and again in August 2011.  The couple filed for divorce in July 2011, which was granted in September 2012.

K.D.A.-A. continued to be unable to see her son.  In August 2011, the Bailiff’s Court determined that it did not have jurisdiction to consider whether K.D.A.-A. could return to the Philippines with her son.  Around that time, K.D.A.-A. initiated child custody proceedings in the Philippines.

In September 2011, the Immigration Service informed K.D.A.-A. that it would not extend her visa and she would have to leave Denmark within a month.  She later left the country for two months and returned in November 2011.  

In July 2012, the District Court of Naestved determined that it was in the child’s best interests to live with K.D.A.-A. in the Philippines.  M.A. appealed against the decision and refused K.D.A.-A. access to their son.  In August 2012, the Eastern High Court remitted the case to the City Court of Naestved to decide on the competence of the Danish courts to hear the case.  M.A. limited K.D.A.-A.’s access to their son during this time. 

In September 2012, K.D.A.-A. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) on behalf of herself and her son.  She claimed that Denmark had violated articles 1, 2(d), 5 and 16(d) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  K.D.A.-A. claimed that the State Party had failed to provide effective remedies and protection for her and her son and supported the ongoing practice of “ignoring violent abductions and crimes committed by ethnic Danish men against foreign women and children.”  In addition, K.D.A.-A. noted that many foreign women living in Denmark faced similar obstacles in respect of child custody rights.

[NB: In October 2012, after K.D.A.-A. submitted her communication to the CEDAW Committee, the District Court of Naestved upheld K.D.A.-A.’s claim that her son was to take up domicile with her in the Philippines.  In January 2013, the Eastern High Court upheld the District Court’s judgment on the basis that it was in the son’s best interests to take up domicile with K.D.A.-A.]

State Party’s observations on admissibility

The State Party challenged the admissibility of the communication on several grounds.

Absence of legal standing (art. 2)

The State Party claimed that the communication should be declared inadmissible because the author and her son lacked legal standing under article 2 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).  It claimed that the son could not claim to be a victim under CEDAW because he was male.  It further claimed that K.D.A.-A. and her son could no longer claim to be victims given the January 2013 decision of the Eastern High Court upholding the decision to allow the child to take up domicile with K.D.A.-A. in the Philippines.

Failure to exhaust domestic remedies (art. 4(1))

The State Party also claimed that the communication should be declared inadmissible under article 4(1) of the Optional Protocol due to the failure of K.D.A.-A. to exhaust domestic remedies related to gender-based discrimination.  It asserted that “no allegation concerning gender-based discrimination against her or her son was ever made by her before the State authorities.  Accordingly, the domestic authorities have yet had no opportunity to assess such allegations.”  It further asserted that other domestic proceedings were ongoing at the time K.D.A.-A. submitted her communication to the CEDAW Committee.   

Same matter already examined by another international procedure (art. 4(2)(a))

The State Party claimed that the communication should be declared inadmissible under article 4(2)(a) of the Optional Protocol because K.D.A.-A. had registered the same complaint with the European Court of Human Rights.

Failure to substantiate claim (art. 4(2)(c))

The State Party further claimed that the communication should be declared inadmissible under article 4(2)(c) of the Optional Protocol, as K.D.A.-A. had failed to substantiate why or how it had violated her and her son’s rights under CEDAW.  It asserted that K.D.A.-A. had “completely failed to indicate or specify how particular decisions, acts or omissions by the State party’s authorities [had] allegedly entailed a violation of rights under the Convention.”  It also claimed that K.D.A.-A. had failed to support her claims with any evidence or documentation.  

Abuse of the right to submit a communication (art. 4(2)(d))

Lastly, the State Party claimed that the communication should be declared inadmissible under article 4(2)(d) of the Optional Protocol because it constituted an abuse of the right to submit a communication.  In this connection, it pointed to the alleged failure of K.D.A.-A. to satisfy the aforementioned admissibility criteria.      

CEDAW Committee’s decision on admissibility

The CEDAW Committee determined that K.D.A.-A. and her son lacked legal standing and subsequently declared the communication inadmissible under article 2 of the Optional Protocol. 

It explained that K.D.A.-A. and her son ceased to be victims within the meaning of article 2 of the Optional Protocol following the January 2013 decision of the Eastern High Court upholding the decision to allow the child to take up domicile with K.D.A.-A. in the Philippines (“if indeed,” it explained, “they were victims of discrimination until that judgement”). 

The CEDAW Committee also determined that the K.D.A.-A. lacked standing to bring a communication on behalf of “other foreign women married to Danish nationals.”  In doing so, it affirmed that the Optional Protocol excludes any actio popularis and explained that it therefore could not continue to consider the communication for the sake of “other foreign women married to Danish nationals.”  It further affirmed that article 2 of the Optional Protocol excludes communications on behalf of groups of individuals without their prior consent, unless the absence of consent can be justified and noted that K.D.A.-A.  had failed to address the question of consent of the “other foreign women married to Danish nationals”.

The Committee did not make any determinations in respect of the other grounds of inadmissibility raised by the State Party. 

Communication No. 44/2012, UN Doc. CEDAW/C/56/D/44/2012 (28 October 2013)

Decision

 

  

 

Looking to CEDAW: An Opportunity to Protect Women’s and Children’s Rights in Spain and worldwide (Women’s Link Worldwide)

Gema and Paloma Soria copy

Gema Fernández Rodríguez de Liévana and Paloma Soria Montañez of Women’s Link Worldwide discuss Ángela González Carreño v. Spain, a family violence case currently pending before the Committee on the Elimination of Discrimination against Women (CEDAW Committee)

Click here to read the post in Spanish.

 

Factual background

After more than 20 years of being subjected to violence by her partner, in 1999, Ángela Gonzalez left her family home with her three-year-old daughter Andrea after an episode of violence that took place in front of the girl.  Ángela feared that the aggressor –Mr. Rascón – would kill her and her daughter or cause them grave harm. 

Ángela reported the violence she had been suffering, both before the police and the courts on several occasions, and initiated divorce proceedings.  During the following four years that she lived separated from the aggressor, Ángela fought tirelessly to protect her daughter from her daughter’s abusive father and used all the means at her disposal to protect her daughter.  She went before the courts repeatedly to ask, amongst other things, for Rascón’s visitation with Andrea to be supervised.  Despite her efforts and belief in the social protection services and the judiciary, the system failed her and her daughter completely.  Rascón was allowed to have unsupervised visits with Andrea.  On 24 April 2003, during one of these unsupervised visits, Rascón murdered his six-year-old daughter and then committed suicide.

Despite filing more than thirty complaints seeking protection, Ángela’s abuser was condemned only once to a misdemeanour for harassment with a fine.  Ángela had requested protection orders repeatedly for herself and her daughter.  The courts granted the protection order for Ángela, but Mr. Rascón violated the order repeatedly, without consequences for him.  A protection order for Andrea was granted only on one occasion, but even this order was withdrawn later because the judicial authorities said “it hindered Mr. Rascón’s visitation rights.”  In withdrawing the order, the judiciary allowed Rascón’s visitation rights to prevail over the right of Ángela to live free of violence and the best interests of the girl child. 

After Andrea’s death, Ángela unsuccessfully sought justice and reparations from the State for the negligence of the authorities that led to the death of her daughter.  Ángela litigated her case through the court system in Spain, filing before both the Supreme Court and the Constitutional Court.  At every instance, the courts failed to recognise the authorities’ negligence in Andrea’s death, further violating the rights of both Ángela and Andrea.  

Why the CEDAW Committee? 

In her hunt for justice, Ángela decided to take her case to an international body, the CEDAW Committee.  She wanted the State to be held responsible for the acts that led to her daughter’s death and, even more important to her, she continues her fight in the hopes of having the case lead to systemic changes and guarantees of non-repetition for other women and children victims of domestic and gender-based violence. 

Ángela highly values that the CEDAW Committee is the only international body dealing specifically with women’s rights, including the right of women to be free of discrimination on the basis of their sex/gender.  The CEDAW Committee has developed extremely valuable expertise analysing the context of discrimination in which the facts of individual communications brought before it take place.  This expertise has allowed it to take its views from a gender perspective that enables the identification of harmful gender stereotyping.  Moreover, the CEDAW Committee’s case-law sets an international standard that can have an impact on all 187 State Parties to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Ángela’s claim under the Optional Protocol to CEDAW 

Represented by Women’s Link Worldwide, Angela’s communication to the CEDAW Committee alleges violations by Spain of articles 2 (general obligations), 5 (stereotyping) and 16 (equality in marriage and family relations) of CEDAW.

Ángela has claimed in her communication that Spanish authorities violated article 2 of CEDAW by failing to act with due diligence, by all means at its disposal and without delay, to prevent, investigate, prosecute and punish the violence committed against her and Andrea by Rascón, resulting in the murder of Andrea.  Moreover, she has claimed that Spain violated article 2 of CEDAW when, following the murder of Andrea, its courts failed to offer Ángela an effective judicial response or adequate reparations for the harm she had suffered as a result of the negligent actions of the State Party.   

In addition, Ángela has claimed that the State Party’s reliance on harmful gender stereotypes when responding to the violence she and her daughter experienced and when determining the visitation rights of the batterer, violated article 5(a) of CEDAW. 

Finally, Ángela has claimed that the State Party failed to fulfill its due diligence obligation to protect her rights in article 16 of CEDAW, since no remedy was provided after she repeatedly reported the violation of her right to equality in the economic maintenance of Andrea by Rascón.  

Ángela’s expectations 

Ángela’s struggle has always been fueled by her desire to ensure that what happened to her and her daughter doesn’t happen again to any other woman or child.  She is therefore looking to the CEDAW Committee to adopt broad reparation measures and to issue general recommendations to the State Party that can bring about structural changes that will better protect women and children suffering from domestic violence.  Ángela also hopes that her case will clearly identify gender stereotyping as a root cause of violence and discrimination and help to highlight how such stereotyping negatively affects women’s right to access justice.  She hopes that the CEDAW Committee’s views in her case will help to highlight concrete measures that the State Party can adopt to eliminate wrongful gender stereotyping by the judiciary and other state institutions.

Finally, Ángela hopes that her case will help to highlight the significant gaps between Spain’s laws and the protections available to women in practice in respect of domestic and gender-based violence, including through the implementation of those laws by the judiciary and other state institutions.  In her opinion, real, prompt and effective protection for victims of domestic violence and her children is still lacking in Spain, in large part due to wrongful gender stereotyping. 

Status of proceedings

Ángela’s case was filed in September 2012.  Since then, the Spanish Government has submitted its observations on the admissibility and merits of the communication and Ángela has commented on those observations. 

Why did Women’s Link Worldwide take this case?

Women’s Link Worldwide is an international human rights non-profit organisation working to ensure that gender equality is a reality around the world.  With this aim, it strives to advance women’s rights through the implementation of international human rights standards and strategic work with courts, including strategic litigation.

Ángela’s communication to the CEDAW Committee is the first domestic violence case from Spain to be examined by an international body.  Women’s Link Worldwide became involved in the case because it wanted to assist Ángela in her pursuit of justice.  It also became involved in the case because it provides a unique opportunity to review and improve implementation of Spain’s domestic violence law (Protection Measures against Gender Violence Act), which although considered to be a robust law has not been implemented effectively in practice.  

Women’s Link Worldwide hopes that the provisions of CEDAW that require the Spanish Government to end discrimination against women will arm the CEDAW Committee well to make strong recommendations requiring structural changes that will help to prevent similar violations to those suffered by Ángela and her daughter Andrea.  Such recommendations could include directions on how to implement Spain’s current law on domestic violence at all levels (courts, social services, and police) in order to ensure that victim’s rights are guaranteed and a gender perspective is central to any considerations of domestic violence.

Women’s Link Worldwide also became involved in Ángela case because it is illustrative of the problems facing many women in Spain.  In other words, the facts of the case are not unique or isolated to Ángela and Andrea.  In Spain, just like in many other countries, there is a high incidence of violence against women and a lack of adequate responses by the authorities when women try to seek protection and remedies.  In 2004, specific legislation on domestic violence was adopted to ensure protections for victims of domestic violence, but implementation of these laws is greatly lacking.  Judges are reluctant to enforce these laws because of their own biases, regardless of the victim’s rights, and there is no mechanism holding them accountable to do so.  At the same time, the lack of judicial investigation leads to a high rate of cases that are dismissed.

Women’s Link Worldwide was also attracted to Ángela case because there is compelling evidence about the harms of judicial stereotyping.  The application of gender stereotypes by authorities, judges and courts is one of the most significant barriers for the elimination of gender discrimination in Spain and in other countries, and undermines women’s ability to access justice when their human rights are violated.  Judicial gender stereotyping is also one of the main obstacles for gender justice that Women’s Link Worldwide works to eliminate.

Violence against women, the absence of legal protections for the children of victims of domestic violence and judicial gender stereotyping are present in almost all countries in the world.  Women’s Link Worldwide invites the CEDAW Committee to consider Ángela’s communication as an opportunity to address some of these issues, with a view to having a global impact and furthering develop States Parties’ positive obligations to eliminate wrongful gender stereotyping in its domestic violence case-law.

Paloma Soria Montañez has a law degree from the University of Malaga, Spain and a Masters in International Solidarity Action in Europe from the University of Carlos III, Madrid, Spain. She is Senior Attorney and coordinator of the International Gender Crimes and Human Trafficking programs at the organization Women’s Link Worldwide, where she works from 2006.

Gema Fernández Rodríguez de Liévana graduated with a law degree from the University Complutense, Madrid and holds a postgraduate degree as part of the doctoral program ”International Relations: European Union and Globalization” from the same university. She works as a litigating attorney at Women’s Link in trafficking in persons, intersectional discrimination and sexual and reproductive rights.

 

Click here more information about the work of Women’s Link Worldwide. 

 

This post has been published with the permission of Ángela